I own cottage property and just discovered that I planted a row of evergreen trees on my neighbour’s property. Can I claim adverse possession of my neighbour’s land?
The short answer – maybe, but it is unlikely. The following elements must be satisfied for a successful claim:
- The trees were planted at least 10 years prior to your neighbour’s land being transferred to the Land Titles System. Assume the land was transferred to the Land Titles System in 2005. For a potentially successful claim, you must have planted the trees in 1995 or before.
- You must have had actual possession of the subject property. Your actual possession must have been open, notorious, peaceful, adverse, exclusive, actual and continuous. The Court has recognized that seasonal use of land may satisfy the element of continuous possession depending on the nature of the property (i.e. cottage versus primary residence).
- You must have had the intention to exclude the true owner. If you and your neighbour mistakenly believed that you owned the land, it will generally be recognized that you intended to exclude the true owner.
- You must have effectively excluded the true owner. You must actually exclude the true owner from using the land. This may include actions such as erecting a fence, planting a line of trees or shrubs, or posting no-trespassing signs on the land. Non-use by the true owner is not sufficient on its own to prove that he or she has been excluded.
Each case will turn on its own facts. Contact a lawyer to determine if you have a potential claim.